HASMUKHLAL DEVSHANKAR JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner-husband has invoked Articles 226, 14 and 21 of the Constitution to challenge the order dated 26. 11. 2008 of Principal Judicial Magistrate, First Class, whereby his ex-wife is ordered to be paid Rs. 3,000/[ by way of interim maintenance in the main application under section 125 of Cr. P. C. According to the impugned order, the petitioner had married the respondent in 1971 and the marriage was dissolved in the year 1991. Thereafter, the respondent, alleged to have been divorced by the petitioner, filed an application for maintenance under section 125 of Cr. P. C. on 04. 06. 2007. According to the respondent, the petitioner is earning Rs. 40,000/- per month and he is remarried to a practicing doctor. Therefore, the application was made for monthly allowance of Rs. 15,000/ -. The case before learned J. M. F. C. is pending and the petitioner has taken all the available defences which are yet to be substantiated. However, admittedly, the petitioner was not paying any amount by way of maintenance during pendency of the proceeding for almost 18 months. The petitioner appeared to have neglected the proceeding and the proceedings appeared to have been prolonged at his instance. Under such circumstances, learned J. M. F. C. appears to have made the impugned order suo moto for immediate relief to the estranged wife in the interest of justice and having regard to the facts and circumstances of the case.

(2.) LEARNED counsel Mr. C. B. Dastoor, appearing for the petitioner, vehemently argued that learned Magistrate had no power or jurisdiction to suo moto make an order for payment of interim maintenance in view of the express provisions of third proviso to sub-section (1) of section 125 of Cr. P. C. He submitted that the order of interim maintenance could only be made after an application in that regard was made and at least an affidavit was filed in support thereof. He firstly relied upon judgment of the Supreme Court in Savitri wife of Govind Singh Rawat v. Govind Singh Rawat [ (1985) 4 SCC 337] and, after reading material portion thereof, submitted that the judgment would not apply in the facts of the present case.

(3.) BARE reading of the provisions of section 125 of Cr. P. C. clearly indicate that, by the Amendment Act of 50 of 2001 and with effect from 24. 9. 2001, Magistrate is empowered to make an order for monthly allowance or interim maintenance and expenses of the proceeding and thee are no express or implied fetters on the powers of the Magistrate in view of the socially benevolent purposes of the provision and the powers having been entrusted to a judicial authority for entertaining the applications for maintenance. Therefore, there is no substance in the argument that the impugned order was without jurisdiction or authority of law. There being no other reason to interfere with the impugned order in exercise of the extra-ordinary and limited jurisdiction of this Court, particularly when the impugned oder is an interim order, the petition is not required to be entertained and accordingly it is dismissed in limine.